U.S. Patent Reform Bill: An Interview with Mark Webbink

Open source software businesses and projects--like all software companies--have been living with a sword over their heads: the sword of patents. A year ago, the Open Source Risk Management (OSRM) firm reported the existence of 283 patents that the Linux source code may potentially infringe upon. (This is not to say Linux does infringe on all 283.)

While OSRM found that a third of those patents were held by Linux-friendly corporations like Cisco, HP, IBM, Intel, Novell, Oracle, Red Hat, and Sony, there were also at least 27 patents held by Microsoft, which has proven its willingness to patent other companies' work and pursue license fees in the recent squabble over the iPod interface.

Defending a patent claim costs about $2 million per side, per claim. That may be, as eBay deputy general Jay Monahan puts it, "an unfortunate cost of doing business," but that's not a cost most open source projects can afford. Granted, patent trolls will go after companies with deep pockets, but companies that compete with open source may see a strategy in using patent claims to simply shut down a small company.

Open source developers (and well-known companies like IBM and Novell that are involved in open source) have recently become quite worried that some troll or another will find an open source project or company infringing on a patent. It is time--commercial Linux developer Red Hat and Open Source Development Labs (OSDL), an industry consortium, have decided--to take corrective action.

At August's LinuxWorld '05, the organizations announced their own
versions of patent commons--safe havens where patents could be
dedicated to open source projects. OSDL's Patent Commons will be a
place where companies and individuals can outright donate their
patents to the community. Red Hat has agreed to fund the cost of
registration for patents that will be donated to its Fedora
Foundation. Those patents could then be used in projects using most
open source licenses.

All of this is set against the background of a major patent reform bill that will be taken up by Congress this session.

I spoke with Mark Webbink, deputy general counsel for intellectual property at Red Hat, about the state of patents, the patents commons idea, and the legislation working its way through Congress.

Richard Koman: How does the current patent regime threaten the health of Linux and open source?

Mark Webbink: I'm not sure that it threatens Linux or open source any more specifically than it threatens all software. From my perspective, the whole situation has gotten far beyond what anybody would have reasonably expected 20 years ago. What we have now is companies filing patent after patent on minute improvements to relatively innocuous features to software, simply to bulk up their patent portfolio and lay more nails in the road for their competitors.

I'm going to use Microsoft as an example--not to pick on them, but they do pursue this as a strategy. They have 14 patents on the positioning and movement of a cursor and two more pending applications. One of the humorous ones of late is their claimed innovation to be able to add and delete white space from a document. They didn't file one patent on that; they filed one to add the white space and one to remove the white space.

Koman: It requires some special technical breakthroughs to be able to do that, I guess.

Webbink: I suppose it does.

Koman: Speaking of Microsoft, what's your take on this issue of Microsoft's patent on the iPod interface?

Webbink: That one's going to be interesting, especially in light of the proposed legislation to reform the patent system by moving from a first-to-invent to a first-to-file system. If we already had that legislation in effect, Microsoft would win hands down. In that case, I suspect there will be a long, drawn-out battle over who was the first to invent.

[Author's note: A few days after this interview, Creative Labs publicized the existence of a patent for its MP3 player's software interface, which, unlike Microsoft's claim, was certainly invented before the iPod came to market.]